COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
NATIONAL FRUIT PRODUCT COMPANY, INC.
AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
OPINION
v. Record No. 1704-98-4 PER CURIAM
DECEMBER 15, 1998
BRENDA STATON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(J. David Griffin; Fowler, Griffin, Coyne &
Coyne, on brief), for appellants.
(Nikolas E. Parthemos; Parthemos & Bryant, on
brief), for appellee.
National Fruit Product Company and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that Brenda Staton proved by clear
and convincing evidence that her carpal tunnel syndrome
constituted a compensable ordinary disease of life pursuant to
Code § 65.2-401. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence proved that Staton worked for the employer
as a caser and label machine operator. In that job, she pulled
racks out of the label machine, lowered the racks, loaded the
racks with labels, and restarted the machine. She also opened
cardboard boxes, folded the flaps of the boxes, placed labels on
the boxes, and then put the boxes on a caser. She processed
4,000 to 5,000 such boxes during her daily eight-hour shift,
using her left hand more than her right hand. Staton estimated
that she processed approximately 550 such boxes per hour, or
eight to ten per minute. She performed these tasks for the last
twelve of her eighteen years while working for the employer.
On September 4, 1997, after Staton had been working for
approximately two hours and as she was folding flaps on a box,
she experienced a "bad pain" in her left hand. She could not
straighten her left hand and she felt pain throughout her hand.
After Staton reported this incident to her supervisor, she left
work and reported to a physician to whom her employer referred
her.
The following day, Staton began treatment with Dr.
Bernard M. Swope, an orthopedic surgeon. Dr. Swope diagnosed
Staton as suffering from "[p]robable carpal tunnel syndrome,
bilaterally, left greater than right." Dr. Swope later opined
that "[b]ased on the number of years that [Staton] has worked at
that job and the repetitive nature of the job, and her recent
difficulties on the job, I think that there is a high probability
that the carpal tunnel is a result of her work environment." Dr.
Swope performed surgery on Staton's left hand and arm.
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Staton testified that she did not perform any activities
outside of her employment that involved the repetitive use of her
hands. In addition, prior to September 4, 1997, Staton had never
experienced numbness or pain in either hand while performing
activities outside of her work.
In ruling that Staton's bilateral carpal tunnel syndrome was
a compensable ordinary disease of life pursuant to Code
§ 65.2-401, the commission found as follows:
In the absence of any contrary medical
evidence, we are left solely with Dr. Swope's
opinion. Section 65.2-401 requires the
elements be established by "clear and
convincing evidence, (not a mere
probability)" (emphasis added). Dr. Swope's
opinion is more than a mere probability. It
is a high probability, which we find here is
clear and convincing evidence.
II.
"'Whether a disease is causally related to the employment
and not causally related to other factors is . . . a finding of
fact.' When there is credible evidence to support it, such a
finding of fact is 'conclusive and binding' on this Court." Ross
Laboratories v. Barbour, 13 Va. App. 373, 377-78, 412 S.E.2d 205,
208 (1991) (quoting Island Creek Coal Co. v. Breeding, 6 Va. App.
1, 12, 365 S.E.2d 782, 788 (1988)).
In 1997, the General Assembly amended Code § 65.2-400 to
provide that "condition[s] of carpal tunnel syndrome are not
occupational diseases but are ordinary diseases of life as
defined in [Code] § 65.2-401." The General Assembly also amended
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Code § 65.2-401 to provide that the elements required to prove a
compensable ordinary disease of life must be "established by
clear and convincing evidence, (not a mere probability)." We
note that the amendment deleted from the statute the words "to a
reasonable medical certainty."
The current statutory standard is well defined in Virginia.
Clear and convincing evidence has been
defined as "that measure or degree of proof
which will produce in the mind of the trier
of facts a firm belief or conviction as to
the allegations sought to be established. It
is intermediate, being more than a mere
preponderance, but not to the extent of such
certainty as is required beyond a reasonable
doubt as in criminal cases. It does not mean
clear and unequivocal."
Walker Agcy. & Aetna Cas. Co. v. Lucas, 215 Va. 535, 540-41, 211
S.E.2d 88, 92 (1975) (citation omitted).
Dr. Swope's uncontradicted opinion and Staton's testimony
constitute credible evidence to support the commission's
findings. Dr. Swope expressed his opinion in terms of a "high
probability" not a "mere probability." Based upon his opinion
and Staton's testimony, the commission, as the trier of facts,
could conclude that the evidence proved clearly and convincingly
that Staton's bilateral carpal tunnel syndrome was a compensable
ordinary disease of life.
For these reasons, we affirm the commission's decision.
Affirmed.
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